1. INTERPRETATION
In this Agreement, clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention –
1.1. “Customer” means any person or persons at whose request or on whose behalf the supplier undertakes to supply any goods, do any business, or provide any advice or service.
1.2. “Supplier” means Bepicon cc. supplying the goods.
1.3. “Goods” means any materials, products and or services supplied to the customer by the supplier.
1.4. “Agreement/Contract” shall mean this sale agreement, and such other terms and conditions of agreement as may be agreed in writing between the parties.
1.5. “Parties” – the parties to this Agreement, Bepicon CC and the other party as per the invoice.
1.6. “Signature date” the date on which the quote is signed and therefore accepted.
2. TERMS AND CONDITIONS TO PREVAIL
2.1. These standard terms of agreement shall be deemed to be incorporated in and shall apply consistently to every agreement entered into between the supplier and the customer. This Agreement shall commence on the Signature Date and shall terminate on the date of receipt of final payment.
3. QUOTATIONS
3.1. Any quotation given shall not be an offer by the supplier to sell the goods, but constitutes an invitation by the supplier to the customer to do business with the supplier.
3.2. A quotation may be revoked at any time by the supplier. In the event of the supplier not accepting the customer’s order within 10 working days from the date thereof, the order shall be deemed to have been withdrawn.
3.3. A contract will only come into force once the supplier accepts the customer’s order or if the supplier supplies, or tenders to supply, the goods in question to the customer.
3.4. The quotation is based on rates of exchange, freight charges, insurance, labour costs, material, import duty, taxes and other charges ruling at the date of the quotation. Any variations occurring subsequent to the date of the quotation in any of the aforesaid rates or changes, shall entitle the supplier to vary the amount of the quotation accordingly.
4. SEPARATE AGREEMENTS
4.1. Each quotation entered into and signed by the parties hereto shall constitute a separate agreement, incorporating the terms and conditions of this Agreement.
4.2. Additional work will only be accepted if reduced to writing and an additional quote is issued therefore.
4.3. In the event of any conflict between the terms of this Agreement and the terms of the quotation, the terms of this Agreement shall take precedence.
4.4. Bepicon CC’s offers for sale the materials and services covered by a quotation and the sale of any such materials and services shall be subject to the terms and conditions herein.
5. PURCHASE PRICE AND PAYMENT
5.1. Cash customers; on date of receipt of goods.
5.2. Unless otherwise stated in any order given to supplier (or elsewhere in writing to the supplier), payment of the purchase price in respect of any goods despatched by the supplier up to and including the last day of each month, must be made to the supplier by the 30th day of the month following the month in which such order is despatched and invoiced to the account of the customer. If the price stated in the quotation of the supplier is subject to a discount, then that discount will only be allowed if payment is made timeously on or before the due date of the payment. Should any payment due by the customer to the supplier not be made on due date, or should the customer commit any other breach of this agreement, or be placed in liquidation, or commit any act of insolvency, then the full balance owing to the supplier by the customer, as at the date thereof, from whatsoever cause arising, shall immediately become due and payable without notice. The supplier in its sole discretion shall furthermore have the right to cancel the agreement between the supplier and the customer and refuse to deliver any further goods to the customer. In such event the customer shall have no claim or claims of whatsoever nature of kind against the supplier arising out of such cancellation or the refusal of the supplier to deliver any further goods to the customer.
5.3. Unless otherwise stipulated in the agreement, the contract price is based on such “ex works delivery”, exclusive of the costs of packaging , freight, off-loading and insurance.
5.4. Any promissory notes and/or bills of exchange shall be deemed to have been accepted by the supplier without prejudice to the supplier’s claims or rights against the customer in respect of the original cause of debt and the customer hereby waives presentment, notice of dishonour and protest in respect of any promissory note or bill of exchange of which it is an endorser, surety or other party and of which the supplier may become the holder.
5.5. The customer shall not be discharged from its obligation to pay the contract price until the supplier actually recovers payment in full, notwithstanding the means and method of payment agreed upon by the parties.
5.6. Prices are exclusive of value added tax, which VAT the customer shall pay or reimburse to the supplier simultaneously with the purchase price. The purchase price shall be payable by the customer to the supplier in the currency stated on the order, without deduction or set-off, and free from any exchange.
5.7. The customer has no right to withhold payment for any reason whatsoever. The customer shall not be entitled to set-off any amounts, which may be claimed by the customer from the supplier, against any amounts owing by the customer to the supplier.
6. RISK
6.1. The risk in and to the goods shall pass to the customer from the moment that it or its transporter signs for the goods which are loaded onto the delivery vehicle.
6.2. The Client shall make adequate provision for the safe storage of the materials.
7. DELIVERY
7.1. Any claims for shortages or damage to the goods must be made in writing by the customer within ten (10) days of the goods being received by the customer, failing which the supplier shall be excused from all liability in respect of such claims.
7.2. TAny delivery date indicated by the supplier shall not bind the supplier to affect delivery on such date. The customer shall accept delivery when it is tendered and shall not be entitled to withhold or defer payment, reduce the price or be entitled to any other remedy against the supplier on account of delays in effecting delivery.
7.3. The customer shall be liable for all costs occasioned by its failure or refusal to take timeous delivery of the goods from the supplier.
7.4. The signature of any employee of the customer on any official delivery note, invoice, or waybill of the supplier or the similar paper of any authorised independent carrier of the supplier shall constitute good and sufficient proof of delivery of the goods to the customer.
8. OWNERSHIP
8.1. Notwithstanding delivery of the goods by the supplier to the customer, ownership of the goods shall not pass to the Client until payment of the purchase price has been paid and received in full.
9. WARRANTIES & INDEMNITIES
9.1. No warranties, guarantees or representations, expressed or implied whether by law, contract or otherwise, which are not set forth in this agreement, shall be binding on the supplier. The goods are purchased “voetstoots”. The supplier shall not be liable for any inaccuracies in any drawing, specifications or other information supplied by the customer.
9.2. The supplier shall under no circumstances be liable for any special, consequential or indirect damages or losses.
9.3. The supplier shall under no circumstances (except if gross negligence is proven ) become liable to the customer for any direct damages or losses sustained by the customer, which are alleged to have been sustained by the customer as a result of but not limited to:
9.3.1. Any delay or failure in the manufacture or delivery of the goods;
9.3.2. Defective or incorrect materials, workmanship, design or specification.
9.4. Without prejudice to the provisions of 9.3, the supplier’s liability on account of defective materials and workmanship shall be limited exclusively to the repair or replacements thereof at the supplier’s sole discretion, but the supplier shall nevertheless be excused from all liability unless it has been notified of such defect in writing within TEN DAYS after the date of the delivery of the goods, whether the defects be patent or latent.
9.5. Returns, if accepted by the supplier at its sole discretion and upon such terms as it may prescribe, shall be credited in full, less a minimum of 10% (ten percent) as a handling charge, subject to the goods being in a marketable condition and provided further that the purchaser shall be liable for all costs of delivery to the supplier’s designated premises.
9.6. In the event that the customer provides any specifications or designs to the supplier and requests the goods to be manufactured according to such designs or specifications, then the customer hereby indemnifies and holds harmless the supplier against all claims and expenses of whatsoever nature and description arising from the alleged or actual infringement of any Letters Patent, Trade Marks, Designs or copy rights occasioned by the supplier’s performance.
9.7. The customer shall keep confidential and shall not use for any purpose all drawings and designs supplied by the supplier, and the customer hereby indemnifies the supplier against any loss suffered by the supplier as a result of the breach of this clause.
9.8. The parties agree that the supplier shall have no liability in respect of any loss or damage (direct, indirect or consequential) arising out of any Patent or Trade Mark relating to any of the goods sold being infringed, cancelled, breached or otherwise set aside or declared invalid if the supplier is not the original manufacturer of the goods.
10. BREACH
10.1. In the event of either Party (“the Defaulting Party”) committing any breach of this Agreement and failing to remedy the breach within 10 (TEN) Business Days of receipt of a written notice to that effect then, and in such an event, the other Party (“the Innocent Party”) shall be entitled, at its sole and absolute discretion, to either claim specific performance in terms of this Agreement, or cancel this Agreement, and may claim any such damages as the Innocent Party may suffer arising from such breach.
10.2. The Parties agree that, in the event of a breach of any of the provisions of this Agreement, the Defaulting Party shall be liable to the other Party for all losses which constitute direct and/or general damages.
10.3. Neither Party shall be liable to the other for any losses which constitute indirect, special or consequential damages.
11. DOMICILIUM AND NOTICES
11.1. The parties choose as their respective addresses for the purpose of serving documents that institute legal proceedings and the execution thereof for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature the irrespective addresses as captured on the quotation.
11.2. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing and shall be delivered by email, facsimile or registered post.
12. COSTS
12.1. Either party shall be entitled to recover from the other party all costs incurred by it in enforcing any rights that it has hereunder, including collection charges, costs on an attorney and own client scale, costs of counsel as on brief (whether incurred prior to or during the institution of legal proceedings), or if judgement has been granted, in connection with the satisfaction or enforcement of such judgement.
13. INTEREST
13.1. The customer shall pay interest at the rate of 3% above the publicity quoted prime overdraft rate at which the supplier’s bank lends money, or at the prime rate where applicable. For contracts where the currency other than the South African Rand is stipulated, the customer shall pay interest at the rate of 3% above the ruling LIBOR rate. Such interest shall be compounded monthly in arrears, on all unpaid amounts owing by the customer to the supplier. The prime overdraft rate shall be approved by way of a certificate signed by an employee of such bank.
13.2. Any latitude or extension of time which may be allowed by the supplier to the customer in respect to any payment provided for herein or any matter or thing which the customer is bound to perform or observe is terms hereof shall not under any circumstances be deemed to be a waiver of the supplier’s rights at any time and without notice to require strict and punctual compliance with each and every provision or term of this agreement.
14. WHOLE AGREEMENT, NO AMENDMENT
14.1. This Agreement contains the entire agreement between the Parties with regard to its subject matter.
14.2. No Party shall be bound by or have any claim arising from any circumstances not expressly recorded in this Agreement, whether it induced this Agreement or was negligent.
14.3. Unless reduced to writing and signed by the Parties, none of the following shall have any force and effect:
14.3.1. any variation or consensual cancellation of this Agreement or of any document executed under this Agreement (“Related Document“);
14.3.2. an agreement to settle any Disputes arising under this Agreement; and
14.3.3. any extension of time, or waiver of any provision of this Agreement or any Related Document (and the same shall not operate as an estoppel against any Party in respect of its rights under this Agreement).
14.4. No failure by any Party to enforce any provision of this Agreement shall constitute a waiver of or affect that Party’s rights to require specific performance of that provision, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision.
